Legal News | 24.03.22

Hope for the best but prepare for the worst: Deputyships v Lasting Powers of Attorney

You may assume that if you lose capacity and become unable to make decisions for yourself, your spouse, partner, family or friends will be able to make such decisions for you. Unfortunately, this is not the case.

The only way another individual would be able to make decisions for you (for example dealing with your savings, property and outgoings) is if you had been prepared and appointed them as your attorney under an Enduring Power of Attorney or Lasting Power of Attorney.

Your attorneys can be your spouse, partner, family, friends or adult children.

In the event that you lose mental capacity without preparing a Lasting Power of Attorney, it will be up to your spouse, relatives or other interested parties (such as a care provider) to apply to the Court of Protection for a deputyship order to deal with your affairs on your behalf.

A deputyship order must be authorised by the Court of Protection and the process for obtaining such an order is complex – many forms must be completed and a great deal of information provided. This includes an assessment of capacity (provided by a medical professional), details of your savings, income, property and outgoings, as well as other details about you. In addition, each deputy must sign a declaration to confirm that they are an appropriate person to fulfil the role.

It currently takes up to 20 weeks for a Lasting Power of Attorney to be registered by the Office of the Public Guardian, but it is not unusual for the Court of Protection to take as long as one year to issue a deputyship order.

Whereas LPAs tend to be prepared well ahead of time, at a point when there is no need yet to act upon them, deputyship orders tend to be required as a matter of urgency, hence a delay of a year to obtain an order can cause considerable difficulties in the intervening period.

As well as the time involved with obtaining a deputyship order, there are not insignificant costs associated with the process – a medical assessment fee, an application fee, an assessment fee, an annual supervision fee, as well as a security bond fee. Contrast this with the £82 registration fee that is applicable to Lasting Powers of Attorneys and the difference is stark.

While our advice is always to prepare a Lasting Power of Attorney while you are able, we appreciate that we do not live in an ideal world and this might not always be possible. Therefore, whatever your situation, we are here to guide you through the process of making Lasting Powers of Attorney or obtaining a deputyship order.

For further information, please get in touch with your usual contact or email us at wealth@wansbroughs.com.